After gay sex ruling, does gay marriage gain?

Christian Century, July 26, 2003

Fearing that barriers to same-gender marriage may also fall following the Supreme Court's decision to strike down state laws against homosexual sex, religious traditionalists want the Bush administration to throw its weight behind a constitutional amendment banning homosexual marriages.

But President Bush told reporters in early July that "I don't know if it's necessary yet." According to the Washington Times, Bush said, "Let's let the lawyers look at the full ramifications" of the Supreme Court's 6-3 decision June 26 on a case that struck down a Texas "sodomy" law and comparable ones in a dozen other states.

Senate Majority Leader Bill Frist (R., Tenn.) announced June 29 that he will support the amendment. Introduced in the House but not the Senate as yet, the amendment would not only bar recognition of same-sex marriage on the federal level but also invalidate any state or municipal law that confers either marriage or its corresponding benefits on gay couples.

"It is clear from this that the court has taken sides in the culture war," said Justice Antonin Scalia, summarizing from the bench his dissent in the Lawrence and Garner v. Texas case. That interpretation was echoed by Ken Connor, president of the Family Research Council, who said, "Once again judicial activists have used their fertile imagination to create fights that simply don't exist in the Constitution. In doing so, they have imposed their own moral judgments in place of state legislatures and have thereby undermined the democratic process."

The court's ruling was unexpectedly broad, explicitly embracing the right-to-privacy argument and implicitly embracing the equal-protection argument.

The decision means that all bans on consensual, adult sodomy--for gays and heterosexuals alike--violate the fight to privacy that the majority of the court believes exists in the 14th Amendment.

The decision has already had legal ramifications. On the day after the decision was announced, the Supreme Court invalidated a sodomy conviction that a Kansas teenager received for having sex with a younger boy. Kansas law imposed a harsher penalty on same-sex violators of the state's age-of-consent law than it did on opposite-sex violators. Also on June 27, a New Jersey judge asked for added written arguments, in light of the new court decision, on a case in which seven gay couples are suing the state for the fight to marry.

A Massachusetts court has been hearing arguments in a case many experts believe will expand that state's marriage laws to include homosexual marriage, given the Supreme Court's new ruling. "Our victory was just the beginning," said Kevin Cathcart, executive director of the Lambda Legal Defense and Education Fund, in a July 2 press release. "We're on stronger ground than ever before to fight for gay couples, parents, employees and students--to win fairness in every area of life."

According to several gay-rights groups, courts and government agencies have repeatedly cited sodomy laws in denying homosexuals custody rights, state certifications and other legal advantages. The laws are often cited in states with sodomy statutes because the court assumes that homosexuals are, by their nature, lawbreakers.

Presiding Bishop Frank Griswold of the Episcopal Church endorsed the Texas sodomy ruling. "The Episcopal Church has been on record in support of the civil rights of gay and lesbian persons since 1976, and this decision by the Supreme Court is consistent with our church's established policy."

The Episcopal Church was joined in the brief supporting the plaintiffs by the United Church of Christ, the American Friends Service Committee, the Methodist Federation for Social Action, the Commission on Social Action of Reform Judaism, Hadassah/Women's Zionist Organization of America and the Unitarian Universalist Association. Also filing friend-of-the-court briefs were lesbian and gay affinity groups that identify with a wide range of religious denominations.